Across all EU Member States, broadcasters have exclusive rights to control "on-demand" transmissions of their broadcasts.

There is nothing at an EU Directive level that prevents Member States from protecting broadcasters' rights in "live-stream" broadcasts, and different levels of protection may apply to live-stream broadcasts in different Member States.

Facts

C More Entertainment is a pay TV station that broadcasts live ice hockey matches on its website. The live-stream sits behind a paywall and users pay a per-match viewing fee. The defendant, Mr Sandberg, placed links on his own website that allowed users to circumvent the paywall and watch the hockey matches live (as broadcast) from C More's website for free.

C More contacted Mr Sandberg and asked him to remove the links. Mr Sandberg refused. C More then put in place technical measures to prevent access to that broadcast via the links and took action in the Swedish courts against Mr Sandberg, stating that the placing of the links constituted an infringement of C More's rights.

In 2010, a Swedish District Court found Mr Sandberg guilty of copyright infringement. He was fined and ordered to pay damages and interest to C More. The case went all the way to the Swedish Supreme Court, who asked the CJEU to decide whether Swedish national copyright law was consistent with EU Directives.

The Issues

Copyright laws across the EU have been partially harmonised through various European Directives, but differences remain.

Under the Copyright in the Information Society Directive 2001/29 (the "Directive") Member States must give:

Copyright owners an exclusive right to authorise or prohibit any "communication to the public" of their copyright works. "Communication" includes live-streaming; and

Broadcasters an exclusive right to authorise or prohibit the availability of their "on demand" broadcasts.

Swedish copyright law gives broadcasters wider rights than those prescribed by the Directive, protecting forms of transmission other than "on-demand" broadcasts. The CJEU therefore had to consider whether Sweden was permitted to give these wider rights to broadcasters, or whether the Directive prevented Member States from doing so.

Relying on another Directive (the EU Rental and Lending Directive 2006/115), the CJEU stated that Member States should indeed be able to give broadcasters the right to authorise or prohibit any communication (not just "on-demand" communications) to the public of a broadcast transmission. The CJEU stressed however, that such protection could only be awarded provided that it did not undermine the protection of copyright. This ensures that the overarching rights granted to the copyright holder reign supreme.

Comment

Previous rulings from the CJEU (in Svensson, Bestwater and TV CatchUp) have explored what amounts to a communication "to the public" in the context of hyperlinks, embedded content and retransmissions of broadcasts. The CJEU did not consider this further in its decision in C More, as the related questions were withdrawn. That is a shame as a clear ruling from the CJEU' that directly addresses linking to content behind a paywall would have been helpful.

The ruling highlights the fact that copyright laws across the EU are partly (not wholly) harmonised and that a principal objective of the Directive is to harmonise copyright and related rights but only as far as is necessary for the smooth functioning of the internal market. National differences that do not adversely affect the internal market will not be open to challenge. This is an interesting issue at a time when the European Commission is driving through proposals to reform copyright laws across the EU to achieve a Digital Single Market. Readers of this blog may be interested in a Fieldfisher paper on the future of copyright in the EU with views and opinions from the industry, as well as reaction to the EU's Digital Single Market agenda.